Grassley Seeks Documents for Supreme Court Nomination
WASHINGTON
– Senate
Judiciary Committee Chairman Chuck Grassley (R-Iowa) today requested special
access to documents related to Judge Brett Kavanaugh’s legal work in the White
House, as the committee evaluates his nomination to the Supreme Court. In a
letter to National Archives staff at the George W. Bush Presidential Library,
Grassley sought all emails sent to or from Judge Kavanaugh during his time in
the White House Counsel’s Office, all paper files maintained by Judge Kavanaugh
in that position and all documents relating to his nomination to the U.S. Court
of Appeals for the D.C. Circuit. Grassley also made the following statement:
“For nearly two weeks, I’ve attempted to seek a good-faith agreement from the Ranking Member to jointly request documents relating to Judge Kavanaugh’s legal work in the White House. For nearly two weeks, I’ve found myself either waiting for a response to my proposals or faced with unprecedented and unreasonable counter-proposals.
“Even when I suggested that we jointly request documents that both sides want while continuing to negotiate other categories, the Ranking Member declined. The Minority rejected out of hand multiple accommodations that I’d offered to assist in targeting material they believe is relevant. Instead, they demanded that we expand the request to require a search of every email from every one of the hundreds of White House staffers who served alongside Judge Kavanaugh for nearly six years, to find records that merely mention his name.
“So today, on behalf of the committee, I submitted a request for documents related to Judge Kavanaugh’s time in the White House Counsel’s Office. I expect the production to be the largest ever in the Senate’s consideration of a Supreme Court nominee. In the meantime, I’m eager to review Judge Kavanaugh’s 307 judicial opinions, the hundreds of other opinions that he joined and the 6,168 pages he already provided to us, which are publicly available right now and will provide the greatest insight into his fitness for the high court. As I have said repeatedly, I am not going to put the American taxpayers on the hook for the Senate Democrats’ fishing expedition.”
Text of Chairman
Grassley’s letter to the archivists at the Bush Library follows:
July 27, 2018
The Honorable Patrick X.
Mordente, Brigadier General
Director
George W. Bush Presidential
Library and Museum
2943 SMU Boulevard
Dallas, Texas 75205
Dear General Mordente:
Pursuant to 44 U.S.C. §
2205(2)(C), I ask that you provide Presidential records to the United States
Senate Committee on the Judiciary in connection with the President’s nomination
of Judge Brett M. Kavanaugh to serve as an Associate Justice on the Supreme
Court of the United States. Consistent with the Presidential Records Act
(PRA), 44 U.S.C. § 2201(2), (3), this request is for access to Presidential
records only, not personal records.
Kavanaugh served in the White
House under President George W. Bush, first as Associate Counsel from 2001 to
2003 and later as Senior Associate Counsel in 2003. He served as Assistant to
the President and Staff Secretary from 2003 to 2006. I request that you provide
the following documents to the Committee on an expedited basis, consistent with
the guidelines described in this letter:
(1)
Emails
sent to or received from Kavanaugh, including emails on which he was a carbon
copy or blind carbon copy recipient, during the period Kavanaugh served as
Associate Counsel and Senior Associate Counsel to the President, including any
documents attached to such emails;
(2)
The
textual records contained in Kavanaugh’s office files from the period during
which he served as Associate Counsel and Senior Associate Counsel to the
President; and
(3)
Documents
relating to Kavanaugh’s nomination to the U.S. Court of Appeals for the
District of Columbia Circuit
The Committee has previously
made official requests of Presidential Libraries in connection with nominees
who served in the White House. I believe it appropriate to follow past
Committee precedent concerning requests for records from Presidential Libraries
in several respects.
Section 2205 of the Presidential
Records Act (PRA), 44 U.S.C. § 2205, provides this Committee access to
Presidential records in response to an official Congressional Committee
request, notwithstanding the limitations on public disclosure set forth in
section 2204 of the PRA, 44 U.S.C. § 2204(a)(1)–(6). Such access is, by
statute, subject to “any rights, defenses, or privileges which the United
States or any agency or person may invoke.” 44 U.S.C. § 2205(2).
While I hope that documents responsive to our request will not raise these
concerns, I also recognize that responsive documents may be subject to
statutory or other rights, defenses, or privileges.
Section 2205(2)(C) entitles the
Committee to access any non-privileged Presidential record that is responsive
to the Committee’s special-access request, notwithstanding the limitations on
public access set forth in section 2204. I recognize, however, that in
the context of prior Supreme Court nominations, the Committee and the Archivist
have agreed that some documents containing PRA-restricted material would be
produced to the Committee on a “Committee Confidential” basis. The
Committee further agreed that such documents could be discussed only during a
Closed Session of the Committee. I also acknowledge that the Committee
previously has agreed that the Archivist could withhold certain PRA-restricted
material in its entirety. In these respects, I intend to adhere to
established custom and accept certain PRA-restricted material on a Committee
Confidential basis and to permit the Archivist to withhold some PRA-restricted
material in its entirety.
I ask that with each production,
you similarly abide by established custom and (1) identify the total number of
documents produced, (2) identify the number of documents containing
PRA-restricted material that the Committee agreed to treat as “Committee
Confidential,” and (3) identify the number of documents being withheld entirely
pursuant to assertions of constitutional privilege or pursuant to the
Committee’s agreement not to receive certain PRA-restricted material. I
further ask that you produce documents on a rolling basis as you identify
documents responsive to our request.
I note that in connection with
Justice Gorsuch’s nomination, the Bush Library attempted to withhold as little
as possible and provided portions of documents, rather than withholding entire
documents, where possible. I hope you will adopt the same approach.
As the Committee has done in the past while considering Supreme Court
nominations, I intend to respect the invocation of privilege by a co-equal
branch of our government. For the documents requested by this letter, I
further intend to abide by the Committee practice of declining to receive
materials reflecting classified national security information or personal
privacy information.
Please begin the rolling
production to the Committee of records responsive to this request no later than
August 1, 2018, at 6:00 PM EDT. Please complete the rolling production to
the Committee of all remaining records responsive to this request no later than
August 15, 2018 at 6:00 PM EDT.
I recognize that reviewing the
archives and producing these documents is a significant task. I thank you
in advance for your cooperation and efforts.
Sincerely,
Chuck
Grassley
Chairman
cc:
Mr. Donald F. McGahn
Counsel to the President
Counsel to the President
The White House
1600 Pennsylvania Avenue, NW
Washington, DC 20500
The Honorable David S. Ferriero
Archivist of the United States
National Archives and Records
Administration
700 Pennsylvania Avenue, NW
Washington, DC 20408
The Honorable Dianne Feinstein
Ranking Member, Committee on the
Judiciary
United States Senate
Washington, DC 20510
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